IN THE UNITED STATES DISTRICT COURT
 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA
 

DONJA SEAWELL 

on behalf of herself and all others 

similarly situated 

Plaintiff, Civil Action No. 05-CV-479 

vs. 

UNIVERSAL FIDELITY CLASS ACTION 

CORPORATION 

Defendant. 

Defendant Universal Fidelity Corporation ("UFC") files this reply brief in 

response to Plaintiffs opposition to UFC's Motion for Partial Summary 

Judgment. UFC filed its motion asking that the court make a determination as 

to how any potential award of statutory damages would be calculated under the 

Fair Debt Collection Practices Act ("FDCPA"). 

In her opposition, Plaintiff attempts to misdirect the court from the real 

question at issue in UFC's motion. The primary purpose of UFC's motion was 

to have the Court decide how to calculate any potential statutory damages 

under the FDCPA. Prior to the filing of UFC's motion, Plaintiffs counsel 

asserted that any calculation of UFC's net worth should include UFC's "equity, 

capital stock and good will". (See letter dated December 13, 2005, attached as 

Exhibit "8"). Plaintiff now claims that the method of calculating net worth is not 

an issue in this case. (See page 9 of Plaintiffs reply brief). 

Plaintiffs current position completely ignores the point of Defendant's 

Motion for Partial Summary Judgment. Any potential award of statutory 

damages should be calculated according to Generally Accepted Accounting 

Principles (GAAP), without considering the company's equity, capital stock or 

F 

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Case 2:05-cv-00479-LP Document 51 Filed 03/08/07 Page 1 of 5
good will in the calculation. This Honorable Court can decide this issue 

without considering any of Plaintiffs assertions relating to the amount of 

Defendant's current net worth. 

Plaintiffs dissertation on the history of the FDCPA's statutory damages 

provision, and allegations that UFC artificially lowers its net worth, are not 

relevant to the court's consideration as to how UFC's net worth should 

ultimately be determined. The FDCPA clearly limits any statutory damage 

provision to the lesser of $500,000 or 1 percent of the net worth of the debt 

collector. see, 15 U.S.C. § 1692k. It does not allow for a constrained calculation 

of net worth in order to punish a debt collector no matter how large or small the 

alleged violation of the FDCPA. Moreover, it does not allow for an increase in the 

statutory damage provisions in the event that the debt collector's net worth is 

minimal. It merely states how statutory damages are to be calculated and puts 

a limit on any award of statutory damages. 

Instead of replying to the main argument in Defendant's motion, Plaintiff 

merely sidesteps the issue of how the Court should determine the any potential 

award of statutory damages. UFC's net worth should be calculated utilizing 

UFC's book value in accordance with Sanders v. Jackson, 209 F.3d 998 (7th Cir, 

2000) and approved by courts in the Eastern District of Pennsylvania in 

Hayt. HaY! & Landau, 198 F.R.D. 461 (E. D. Pa. 2000) and Saunders v. Berks 

Credit and Collections, Inc., 2002 WL 1497374 (E.D. Pa. 2002). 

Moreover, Plaintiff conveniently points out that the Defendant refuses to 

settle this case but then argues that the issue of how to calculate any potential 

award of statutory damages is not ripe for adjudication. At first glance, 

Plaintiffs statement about the status of settlement discussions would appear to 

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Case 2:05-cv-00479-LP Document 51 Filed 03/08/07 Page 2 of 5
be completely irrelevant. Nevertheless, it is impossible for Defendant to 

determine any potential settlement until it knows the potential range of 

statutory damages it may face. Even if the determination of UFC's actual net 

worth should be deferred at this time, it is entirely appropriate and necessary 

for the Court to determine how UFC's net worth should be calculated. This 

decision is a legal decision, based upon statutory interpretation, case law and 

general accounting principles. It does not involve any factual question that 

needs to be resolved by a trial. Once the Court makes a determination as to 

how net worth should be calculated, the Defendant can gauge the potential 

exposure it faces regarding statutory damages. 

As such, Defendant UFC respectfully requests that this Honorable Court 

determine that any statutory damages be calculated according to Generally 

Accepted Accounting Principles (GAAPj, without considering the company's 

equity, capital stock or good will in the calculation. 

FREY, PETRAKIS, DEEB, 

BLUM & BRIGGS, P.C. 

BY: /s/ NWB3521 _ 

NORMAN W. BRIGGS 

Attorney for Defendant 

Universal Fidelity Corporation 

Date: 1/08/07 

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Case 2:05-cv-00479-LP Document 51 Filed 03/08/07 Page 3 of 5
(TUElDEC 13 2005 17:20/ST. 17:03/i'I(., ~.8C" 5~''';~

LAW OFFICES 

FRANCIS & MAILMAN A PROFE.SSION....L CORPORATION 

LANO TITLE BUII-OING, '9TH FI-ool\ 

100 SOUYH BRO.... O' STREET 

PHII-AOI=;LP'rlIs; PA '91'0 

215-735-9600 

FAX: 215-940-9000 

WWW.CONSUMERl.AWFII\M.COM 

EMAIL: INFO@CONI5UMERLAWFIRM.COM 

December 13, 2005 

PRIVILEGED - SUBMITTED UND~R FEDERAL
 

RULE OF EVIDENCE 408
 

Via Facsimile & Regular Mall 

Norman W. Briggs, Esquire 

Frey, Petrakis, Deeb, Blum, 

Briggs & Mitts, PC. 

1601 Market Street 

Suite 2600 

'Philadelphia, PA 19103 

'Re: Seawell v. Universal Fidelity Corporation, No; 05M479 

DearMr, Briggs: 

As a follow up to our discussion Friday, I am writing on behalf of the 'Plaintiff to make a 

settlement demand upon your client, Universal Fidelity Corporation. This letter is submitted 

under, Federal Rule of Evidence 408 and is protected, to the full extent of that Rule. 

At this juncture ofthe case, we await the Court's ruling on class certification. In the event 

that the Court certifies the class, notice will go out followed by merits discovery, and ultimately 

trial. The fees incurred by both parties (already somewhat significant on Plaintiffs end and 

probably Defendant's as well) will obviously be costly to both sides, and ultimately to your 

client, and can only increase as time goes by. 

Discovery reveals that there are at least 321 members. and perhaps more. We are 

optimistic that Plaintiff will prevail on the merits of her claim and that the Court will grant class 

certification. However, we recognize that there are always risks to class action litigation, As 

such, we submit the following demand: 

(a)	 a payment to each Class member in the amount of $250.00 into an interest bearing 

escrow account, administered by Class counsel, upon an agreement in principle 

for the benefit of plaintiff and the members of the Class; , 

Case 2:05-cv-00479-LP Document 51 Filed 03/08/07 Page 4 of 5
(b)	 a payment of $5,000.00 to the representative Plaintiff Donja Seawell for her 

individual claim and compensation for services rendered to the class; 

(c)	 Defendant to pay all costs of notice to the Class and settlement administration, to 

be handled by an independent settlement administrator, of Plaintiffs choosing; ~d . 

(d)	 payment of Plaintiffs reasonable attorneys' fees and reimbursement ofex.penses, 

calculated according to the usual lodestar method for such a case. 

There would be no reversion of any funds to Defendant in any event, Funds resulting
 

from anyuncashed checks would be directed to a cy pres recipient, such. as COmDmruty Legal
 

Services, National Association of Consumer Advocates,Philadelphia Legal Assistance, National
 

Consumer. Law Center, Philadelphia Consumer Bankruptcy Assistance Project .or.Philadelphia
 

.Volunteers for the Indigent, to be selected by the Court in the absence ofthe parties' agreement. 

Further, we are aware that this settlement demand seeks' less than' Plaintiffand the Class 

could potentially recover at trial. This demand is only being submitted as an attempt to resolve 

the case in a reasonable range at this immediate juncture. 'In the event that we cannot resolve the 

case, the instant demand will be withdrawn, and will not in any way limit Plaintiffs right to seek 

the maximum amount permitted by law. . 

In submitting this proposal, I am aware of your contention that Defendant's net worth 

Iirnits its exposure to a lesser recovery for the class than that which I have proposed. Please note 

that we are not in agreement regarding what Defendant's financials reveal. Defendant's financials 

show significant revenue and profits above 'and beyond the figures you have mentioned. 

Additionally, these figures do not reflect Defendant's equity, capital stockand good will, relevant 

factors for determining net worth, and which are no doubt significant given your client's stature. 

Wisneski v, Nationwide Collections. Inc., 227 F.RD. 259 (B.D. Pa 2004). In the event that we 

are unable to resolve the case at this juncture, and your client elects to place its net worth at issue, 

. we will necessarily need confirmatory discovery regarding Defendant's true financial position. 

Please forward this demand to your client. After you and your client have bad an 

opportunity to study this matter.we would welcome a response. 

JAF/pso 

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